UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELENA SEROKA STERN, an infant, by

her next friend, Gary S. Stern;

GARY S. STERN; JOSEPHINE STERN,

Plaintiffs-Appellants,

v.

No. 96-1011

THE CINCINNATI INSURANCE COMPANY;

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY; GRAPHIC ARTS

MUTUAL INSURANCE COMPANY,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Virginia, at Lynchburg.

Jackson L. Kiser, Chief District Judge.

(CA-95-16)

Submitted: January 28, 1997

Decided: February 25, 1997

Before RUSSELL, MURNAGHAN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Bryan Kenneth Selz, OVERBEY, HAWKINS & SELZ, Rustburg,

Virginia, for Appellants. Phillip Verne Anderson, Melissa Warner

Scoggins, Jason Guy Moyers, GENTRY, LOCKE, RAKES &
MOORE, Roanoke, Virginia; Henry Moseley Sackett, III, EDMUNDS & WILLIAMS, P.C., Lynchburg, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants, Elena Seroka Stern and her parents, Gary and Josephine Stern, appeal the district court order granting summary judgment for Appellees in Appellants' declaratory judgment proceeding

against Graphic Arts Mutual Insurance Company ("Graphic Arts")

and two other insurance companies. Resolution of the only issues

presented in this appeal required the interpretation and application of

Virginia substantive law in circumstances that had never been

addressed by the Supreme Court of Virginia. This court granted

Appellants' motion to certify these questions of law and the Supreme

Court of Virginia accepted the questions for consideration. In light of

the Supreme Court of Virginia's response to those questions, we

affirm the district court's order.

The events leading to this case occurred on March 1, 1995, in

Lynchburg, Virginia. Ten-year-old Elena Stern was injured when a

car driven by David Demoss struck her as she attempted to cross the

road to board her school bus. At the time of the accident, the bus

driver had activated the vehicle's flashing red lights and safety stop

sign and had extended the front safety gate. Elena was two or three

feet from the center line of the road and several feet from the front

of the bus when Demoss' vehicle hit her.

DeMoss' liability was stipulated. Elena's parents are liable for

Elena's medical expenses and Demoss is liable to the Sterns for the

expenses they incurred as a result of the accident.

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At the time of the accident, Demoss was insured under an automobile liability insurance policy issued by The Cincinnati Insurance

Company ("Cincinnati"), which limited liability coverage to $25,000

per person. Elena was covered by her parents' State Farm Mutual

Automobile Insurance Company ("State Farm") policy underinsured

motorist provisions which provided $100,000 for underinsured motorist coverage. The Lynchburg City School System was insured under

a vehicle liability insurance policy issued by Graphic Arts providing

$1,000,000 of underinsured motorist coverage to persons defined as

insureds under the policy.

"Insured" is defined in the Graphic Arts policy to include, inter

alia, those who are injured while "occupying" a vehicle covered under

the policy. The policy defines "occupying" as"in, upon, getting in,

on, out or off." The Virginia uninsured motorist statute, Va. Code

Ann. § 38.2-2206 (Michie Supp. 1996), provides that there is coverage for those individuals who "use" a motor vehicle with the express

or implied consent of the named insured.

The district court concluded that Elena Seroka Stern was neither

"occupying" nor "using" the Lynchburg City school bus at the time

of the accident and so was not entitled to the underinsured motorist

coverage available under the Graphic Arts policy. On appeal, Appellants asserted two questions for purposes of determining whether

Graphic Arts was liable to Elena: (1) whether, when she was injured,

Elena was "occupying" the Lynchburg city school bus as defined by

Graphic Art's insurance policy; and (2) whether Elena was "using"

the school bus as defined by Va. Code Ann. § 38.2-2206 when she

was injured. Finding no controlling precedent on these issues, we submitted them to the Supreme Court of Virginia.1

In an opinion dated November 1, 1996, the Supreme Court of Virginia answered both questions in the negative. The Sterns argued that,

at the time of the accident, Elena was "occupying" the bus as defined

by the Graphic Arts policy, because she was "getting in [or] getting

on" the bus.2 Rejecting this argument, the Supreme Court of Virginia

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1 In doing so, we acted pursuant to Va. Const. art. VI, § 1, and Va. S.

Ct. R. 5:42.

2 The Sterns conceded that Elena was not "in" or "upon" the school bus,

nor was she "getting out or off" the bus at the time of the accident.

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held that the term "occupying" implies a physical presence in or on

a place or object and concluded that because Elena was merely

approaching the bus when the accident occurred, she was not "getting

in" or "getting on" the bus as contemplated in the Graphic Arts policy.

Furthermore, the court held that Elena was not "using" the bus for

purposes of Va. Code Ann. § 38.2-2206, because she was not yet a

passenger when the accident occurred. Thus, the court held that the

Graphic Arts policy did not provide underinsurance coverage to the

Sterns.

Because under Virginia law Elena Stern was not covered by the

Graphic Arts policy, we affirm the district court's order granting summary judgment for Appellees. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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